Thursday, June 07, 2007

Copyrights: Response to Mark Helprin's NY Times Op-Ed

Mark Helprin, a noted writer whose 1983 novel Winter's Tale was a bestseller, wrote an Op-Ed for The New York Times pleading for perpetual copyrights. What follows is my response to that article.

Dear Mr. Helprin:

Your New York Times Op-Ed of May 20th, "A Great Idea Lives Forever. Shouldn't Its Copyright?" intrigued me.

First, I'm assuming that the term of copyright you mention in your last paragraph was extended by Congress in 1998 to the life of the author plus seventy years. I wasn't aware of that extention until you mentioned it, but presumably it would allow one's heirs to benefit as assigned owners of one's copyright for those seventy years after one's decease.

A more difficult issue you raise is the one surrounding intellectual property. You make the statement in your essay that "ideas are immaterial to the question of copyright." As I have always understood the purpose of copyright law, it is to secure one the benefits of originating and publishing an idea. I write novels. Those novels begin as ideas, or they could be interpreted as being ideas, expressed in the specific format of story-telling and (hopefully) concretized in the form of physical objects, books. As ideas, these novels are intellectual property. The Constitution and complementary copyright law secure for me the right to profit or benefit from their publication for the term of my lifetime plus seventy years.

You cite the Barnes & Noble practice of publishing novels whose copyrights have long expired, in cheap editions (but, to my mind, nicely and attractively packaged), and not having to pay royalties to their authors' heirs, as a species of unfairness to those heirs. I'm also thinking of the Dover softcover editions of works long, long out of print and in the "public domain." I think Ayn Rand made a very valid point on this subject, in her 1964 article, "Patents and Copyrights," to wit:

"It is in this issue that our somewhat collectivistic terminology might be misleading: on the expiration of a patent or copyright, the intellectual property involved does not become 'public property' (though it is labeled as 'in the public doman'); it ceases to exist qua property. And if the invention or the book continues to be manufactured [by, say, Barnes & Noble or Dover], the benefit of that former property does not go to the 'public,' it goes to the only rightful heirs: to the producers, to those who exercise the effort of embodying that idea in new material forms and thus keeping it alive."

(Preceding and following comments in square brackets are mine by way of illustration.)

She also notes:

"The right to intellectual property cannot be exercised in perpetuity. Intellectual property represents a claim, not on material objects, but on the idea they embody, which means: not merely on existing wealth, but on wealth yet to be produced - a claim to payment for the inventor's or author's work. No debt can be extended into infinity. [Although the Federal government, the great confiscator you name in the beginning of your essay, believes otherwise.]

"....Intellectual property cannot be consumed [by neither its originator nor its beneficiary]. If it were held in perpetuity, it would lead to the opposite of the very principle on which it is based: it would lead, not to the earned reward or achievement, but to the unearned support of parasitism. It would become a cumulative lien on the production of unborn generations, which would ultimately paralyze them." [Again, much like the Federal debt, footed in a losing battle by the taxes you highlight in your first paragraphs. I share your obvious animus for them.]

I might add that if a novel or other form of intellectual property, such as a philosophical treatise (e.g., John Locke's works), proves its cultural longevity during and even beyond an author's lifetime, the idea is "out there" for anyone with the least amount of curiosity to investigate. It is as much a known entity as the moon or Mars. It remains for anyone to either repair to the library or buy a reprint of such a work. Regardless of one's own estimation of the intellectual or esthetic worth of a novel, its cultural longevity and "public" interest in it moved a producer to go to the effort and expense to reproducing, for example, all the extant plays of Aeschylus, Euripides, and Sophocles, which were certainly not copyrighted (although their more recent translations may be).

So, while I agree with you that Congress should again extend the term of copyright to an author's lifetime plus more than seventy years (only because of the increasing, potential longevity of his heirs), I would contest the idea that a copyright should continue in perpetuity, which is what you seem to be implying. You remark at the end of your essay: "Would it not be just and fair for those who try to extract a living from the uncertain arts of writing and composing to be freed from a form of confiscation not visited upon anyone else? The answer is obvious, and transcends even justice."

No, I would say that a perpetual copyright would result in an injustice, that is, it would benefit generations of an author's relatives or a succession of assignees perhaps three times removed, for no good reason other than genealogy or legal fictions. The character or moral stature of the holders of a perpetual copyright is irrelevant. Hypothetically, the cost of paying royalties to the distant relations of Shakespeare, Richard Brinsley Sheridan, James Fennimore Cooper, et al., would discourage the production and dissemination of their works, making their production costs prohibitively high. A perpetual copyright would abbreviate a work's longevity.

Now, I can name individuals I know personally as heirs to my copyright, relatives of mine or not, or assign them the copyright in the event I am incapacitated in some way. However, I cannot know who might be my future relatives or "heirs" beyond my immediate generation. They might be moral, productive people, and I would wish them well in their own endeavors, if I could.

But, they might be parasitical bums whom I would not want to see benefit from my work. For all I know, they might hold my work ransom and demand exorbitant, unearned returns on the copyright. In which case, my work would disappear from the culture. So much for perpetuity.

Your last sentence is: "No good case exists for the inequality of real and intellectual property, because no good case can exist for treating with special disfavor the work of the spirit and mind."

I'll let Ayn Rand answer that one, too, from the same essay:

"Intellectual achievement, in fact, cannot be transferred, just as intelligence, ability, or any other personal virtue cannot be transferred. All that can be transferred is the material results of an achievement, in the form of actually produced wealth."

Or literary wealth, if you will, in the form of books. The "work of the spirit and mind" is a personal virtue, and part of my spiritual remuneration is to see it "out there" in the culture, objectified as an entity in reality - the "material results" - to be valued or not by others. No one, not even my most ardent fans, can repay me in that respect. I would not expect them to, and the more perceptive and grateful among them would know they could not.

To paraphrase Howard Roark in Rand's The Fountainhead, when he is asked how he would be rewarded for (secretly) designing a housing project: "What will I get out of it? I'll have written Sparrowhawk."

I highly recommend Rand's article on this subject, which is reprinted in Capitalism: The Unknown Ideal.

5 comments:

Anonymous
said...

While I agree with your overall point - I think "perpetual copyright" is nuts, for many of the reasons you mention - Mr. Helprin is correct, in the legal sense, when he says that "ideas are immaterial to the question of copyright." You cannot copyright an idea, only the expression of the idea. Trademark or patent law may cover an idea, depending on the idea, but not copyright. From the copyright.gov FAQ page:

"Copyright does not protect ideas, concepts, systems, or methods of doing something. You may express your ideas in writing or drawings and claim copyright in your description, but be aware that copyright will not protect the idea itself as revealed in your written or artistic work."

To use your novels as an example(which I haven't read - I'm basing this only on the Amazon page of one of them, so forgive me if it is a mischaracterization) - you use a narrative structure based in the Revolutionary War to communicate your ideas about American politics and history. There is nothing stopping me from doing exactly the same thing - I too can write Revolutionary War novels that use historical narrative to support my political ideas. You don't own that idea, and even if I tell the world that I got the idea from your books, I'm not breaking the law.

Just to update readers: I sent a copy of my letter to the NY Times, requesting they forward it to Mr. Helprin. Mr. Helprin is a fellow or the like at the Claremont Institute in California, so I sent the text of my letter to him there. No response from either quarter to date. I have subsequently learned that the Institute is a conservative outfit. I read a pamphlet it features on its home page, "The Rise and Fall of American Constitutional Government," and it is basically an essay about how all our rights derive from God -- as a "self-evident" truth (the Bible tells us so!). So, my references to Ayn Rand in my letter would probably rub Mr. Helprin the wrong way (perhaps even "offend" him). And, that's the end of that.